DPP (Vic) v O'Brien

This appeal concerns the imposition of a sentence on a respondent for an offence of failing to comply with a direction given under the Emergency Management Act 2005 (WA) in response to the COVID-19 pandemic. The respondent had been granted an approval to enter Western Australia from Victoria, where she had been for approximately one month visiting and assisting her sister who was unwell. On her arrival back into Western Australia, the respondent was required to comply with the terms or conditions of the approval, including a quarantine direction. The approval included a requirement that the respondent quarantine for 14 days at a quarantine centre at her own expense. The respondent was found to have failed to comply with the direction and was charged with the offence. The respondent pleaded guilty at the earliest opportunity. The learned magistrate sentenced the respondent to immediate imprisonment for 6 months and 1 day, but the respondent appealed against that sentence on the basis that it was manifestly excessive and that the magistrate had failed to consider whether the sentence of imprisonment should be wholly or partly suspended. The appeal judge allowed the appeal, resentenced the respondent to a community based order and the appellant, who was represented by the Director of Public Prosecutions in the appeal, appealed to this Court. The appellant submitted that the prohibition in s 86 of the Sentencing Act 1995 (WA) on the imposition of terms of imprisonment of 6 months or less was irrelevant to the assessment of whether the sentence was manifestly excessive, because the prohibition did not inform consideration of the type of sentence that may be imposed. The appellant also submitted that the prohibition in s 86 did not apply to a term of suspended imprisonment. The appeal must be dismissed. Leave to appeal was refused in relation to grounds 1, 2 and 3 of the appeal. Properly construed, s 86 does not operate so as to require a court to impose a minimum sentence of 6 months and 1 day imprisonment where the application of the law, and all relevant sentencing principles, would result in a sentence of 6 months or less. On the contrary, the effect of s 86 is that, subject to the express exceptions in the section itself, unless, applying all relevant sentencing principles, a sentence of at least 6 months and 1 day is appropriate in all the circumstances, imprisonment is not an available sentencing option. The prohibition in s 86 of the Sentencing Act applies to the imposition of a term of suspended imprisonment. That is, subject to the express exceptions in s 86, a court must not impose a term of suspended imprisonment of 6 months or less.